7 Criminal Defense Attorney Strategies & Tactics 2022

In a criminal case, a defense is the argument(s) and supporting evidence that attorneys present to the courts with the aim of securing the best possible outcome for their clients. Therefore, for any criminal lawyer, a defense strategy is crucial to the case. Their choice of strategy can make the difference between winning and losing the case presented against their client by the prosecution. Strong arguments with a well-developed defense theory that utilize the best defense attorney tactics will result in a good sentence for the defendant. The choice of strategy could even result in a verdict of “not guilty” or a favorable plea bargain. On the other hand, poorly formulated defenses can result in the defendant facing fines or imprisonment.

As the most important aspect of fighting criminal charges and beating the prosecution’s claims, it is essential you know the best strategies and techniques in a criminal defense. In this article, we share proven legal defense and arguments that will help you win your case, along with essential factors to consider when formulating a theory.

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7 Common Criminal Defense Strategies

1. Beyond Reasonable Doubt

According to US law, the defendant can only receive the verdict of “guilty” if the evidence presented to the courts points toward their guilt beyond a reasonable doubt. If the jury, or in some cases the judge, does not receive satisfactory evidence, they will not be able to charge the defendant with committing the crime. In federal cases, the jury’s verdict must be a unanimous decision. Therefore, one of the most common court defense strategies is to establish reasonable doubt.

The best way to do this is to question the credibility of the witnesses brought forward by the prosecution. This can be done by demonstrating bias, making the jury believe the witnesses could be lying, or suggesting the witness has been bribed. A criminal defense lawyer may also question the plausibility of a testimony by offering other logical explanations for events that transpired. Poking holes in evidence can also spark doubt, so many attorneys will point out errors in police reports or in how physical evidence was gathered.

Accidental Crime

Determining whether the sentence will be handed out for an accidental crime, rather than a premeditated and deliberate incident, will vary from state to state. This process is entirely dependent on the criminal code. For example, California’s Penal Code differentiates between deliberate and unintentional offenses. The majority of other US states also serve a lesser punishment to the defendant if the event is shown to be an accident with no criminal intent. This is true even for major crimes, such as first-degree murder. For example, if a woman shoots a neighbor and murders them – the defense could argue that she simply intended to threaten the neighbor with the weapon and fired it accidentally. In such a case, the fact that she murdered the neighbour was unintentional and may be deemed an accidental crime.

Self-Defense or Imminent Danger

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Similar to accidental crime, many states permit crimes if they were committed on the grounds of self-defense or to protect others. Examples of imminent danger include fear of being murdered, raped, burgled, or suffering from great bodily injury. If the criminal activity was carried out under duress of imminent danger, it may not be considered a crime, and no punishment will be imposed. However, for a self-defense argument to be accepted, the force used against the intruder must be proportionate to the harm feared. For example, courts may deem that a man who stabs an intruder who enters with a knife, may be deemed proportionate. However, if the man shoots and kills the same intruder who enters with a knife, this may not be deemed proportionate.

Defendant Alibi Evidence

Another of the most frequently used defense tactics is to provide an alibi for the defendant. It is impossible for the defendant to be guilty of the prosecution’s claims if it can be proven that they were somewhere else at the time the crime was committed. This is an appropriate tactic to use if the accused is in complete denial of committing the crime and has a way to prove they are not responsible.

To work as a defense strategy, the alibi must be backed up with evidence. For instance, a criminal lawyer may bring forward witnesses that can testify to the alibi, or any video footage, photographs, or GPS records that prove the defendant was not at the scene of the crime. The more physical evidence of the alibi presented, the more believable the alibi will be. However, for alibi defenses based on witness testimonies alone, credibility is crucial. The testimony needs to be trusted by the jury, so choosing witnesses who have no personal connections to the defendant and bringing forward multiple people can strengthen this type of defense.  

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Sometimes members of law enforcement commit misconduct, which creates another of the best criminal defense strategies. There are multiple ways that police may not conduct themselves appropriately or even illegally. Some of the most common forms of police misconduct include:

  • Coercing false confessions or intimidating witnesses or suspects;
  • Planting, doctoring, or mishandling evidence;
  • Obtaining evidence without probable cause;
  • Using unnecessary force on subjects that are cooperating;
  • Exaggerating facts or lying in police reports; or
  • Performing unwarranted surveillance, searches, or seizures.

If a criminal defense lawyer can prove misconduct among law enforcement occurred, the case will likely be dismissed by a district attorney or the courts prior to the trial. In such cases, there is also a chance for the defendant to pursue a civil rights case and claim for damages caused by law enforcement.

6. Plea of Insanity

For a defendant to be charged with a crime, there must be wilful intent. This cannot be proven if the person is legally insane. This is because the person accused may not have understood the criminal act or may not have been aware of the moral consequences. Therefore, another great defense strategy is to prove the client is legally insane. A plea of insanity works as a solid defense strategy in the majority of US states, with the exception of Idaho, Kansas, Montana, and Utah. These four states do not allow insanity as a defense argument.

In all other states, an attorney can prove insanity by utilizing an insanity defense test. The exact test used and the criteria for proving insanity vary widely and depend on the criminal code of each jurisdiction. However, all insanity defense tests rely on one of four legal standards:

  1. The Model Penal Code Test: The defendant is unable to understand that the act they committed was criminal due to their mental disorder.
  2. The Durham Rule: The defendant’s mental illness is responsible for the crime, regardless of whether they have been clinically diagnosed or not.
  3. The Irresistible Impulse Test: The defendant is unable to control their inclinations and desires due to mental illness.  
  4. The M’Naghten Rule: The defendant is unaware of the moral consequences of their actions and cannot distinguish between right and wrong due to their mental disorder.

7. Statute limitations

The statute of limitations is the maximum period of time after a crime is committed that any legal proceedings may be initiated. Therefore, if a case is filed against a defendant for a crime committed many years ago, and this time period has passed d, it may be subject to dismissal. This legislation is in place as evidence can deteriorate over time and result in unfair convictions, such as alibis and witness testimonies holding less weight.

The criminal code of each US state determines the statute of limitations and varies drastically between each jurisdiction. In Wyoming, for instance, there are no limitations in place and legal claims can be brought forward for a case at any time. However, Michigan has a 6-year statute of limitations for misdemeanors. The nature of the crime will also influence how long the statute of limitations is, with many having no limitations on serious crimes such as murder charges, especially that of the first degree. Therefore, this defense may not be appropriate for all crimes. It is best to check the criminal code of each state before using this argument.

Considerations for Creating a Criminal Defense Strategy

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While the above criminal defense strategies have all proven to get a case dismissed, it is important to remember that each criminal case is entirely unique. The best criminal lawyers will look at several factors and develop a theory based on the specific details of the case at hand. In criminal law, it is not a case of simply revealing the truth – lawyers will have to weigh multiple factors and choose the path that demonstrates the defendant’s innocence the most. This strategy gives the defendant the best chance of success against law enforcement, providing reasonable doubt that the defendant is guilty.

Here are the eight considerations that all criminal attorneys should think about before preparing a suitable defense strategy:

  1. Defendant’s explanation of the event and whether they are credible.
  2. Available witnesses that can offer testimonies and their credibility.
  3. Testimonies from expert witnesses and other third parties.
  4. Provable physical evidence and other facts.
  5. Errors and a lack of credibility in the prosecution’s evidence.
  6. Criminal code for the US state in which the crime was committed.
  7. The prosecution’s strategy and history of the lawyer working on the case.
  8. Judge’s decision in previous criminal cases of a similar nature.

Final Thoughts

Strong criminal defense strategies can make the difference between a criminal defendant being found guilty and charged with an alleged crime, and the accused going free. Therefore, this is the most important part of a case for all criminal defense lawyers. The above strategies and tactics are the most commonly used and have proven to be successful in the court of law. However, all lawyers should look into the details of each case to formulate an argument that is most likely to win.

If you have been accused of a crime and are facing punishment, it is highly recommended that you seek legal advice. Representing yourself in the court of law and winning a case is nearly impossible. Always seek appropriate legal counsel before taking any legal actions. Appointing a top criminal lawyer who specializes in strategies and techniques in criminal defense will secure the best possible outcome for your case. 

Article by Yevheniia Savchenko

Yevheniia Savchenko is a Product Content Manager at Lawrina. Yevheniia creates user interface copies for Lawrina products, writes release notes, and helps customers get the best user experience from all Lawrina products. Also, Yevheniia is in charge of creating helpful content on legal template pages (Lawrina Templates) and up-to-date information on US law (Lawrina Guides). In her spare time, Yevheniia takes up swimming, travels, and goes for a walk in her home city.

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